Company acts to end question mark over employment classifications

5 February 2014

A company which underpaid a sales consultant more than $16,000 after
incorrectly hiring her as an independent contractor will review all its
employment records to ensure no other workers are being underpaid.

The review will also assess whether other independent contractors have been
engaged lawfully or should instead be classified as employees.

Queensland-based Centenary Suburbs Sales and Management Pty
Ltd will conduct the review as part of an Enforceable Undertaking it has signed
with the Fair Work Ombudsman.

The company operated real estate agencies on Moggill Road,
Kenmore and Dandenong Road, Mount Ommaney. The
Kenmore agency closed in late 2012.

The Enforceable Undertaking is the outcome of an investigation by the Fair
Work Ombudsman into a complaint from a sales consultant who worked at both
agencies between May and November, 2012.

The woman, who had no prior experience as a real estate sales agent or
consultant, was engaged as an independent contractor on a commission-only basis
and received no income during her employment.

After she left, she received $1365 for commission on the sale of one property
and superannuation.

The Fair Work Ombudsman later concluded that the consultant should have been
engaged as an employee under the Real Estate Industry Award 2010, and had
therefore been underpaid a total of $16,600.

In reaching its conclusion, the Fair Work Ombudsman noted the consultant:

Had no prior real estate sales experience,

Did not have an ABN and had no experience running her own business,

Worked to a roster maintained by the company,

Did not subcontract work and could only work for one organisation,

Was provided with office space, a desk and access to office equipment, and

Was required to wear corporate attire and a company name badge.

As part of the Enforceable Undertaking, Centenary Suburbs Sales and
Management Pty Ltd has voluntarily back-paid all outstanding entitlements and
written the former employee a letter of apology acknowledging its "sincere
regret" for breaching federal workplace laws and giving a commitment that it
won’t happen again.

The company has agreed to a range of measures to revamp its workplace
practices.

These include:

Putting policies and procedures in place to ensure ongoing compliance with
the Fair Work Act and the Real Estate Industry Award 2010,

Assessing each independent contractor to ensure they are engaged lawfully,
and auditing the pay packets of all employees to ensure they are receiving their
minimum entitlements.

Fair Work Ombudsman Natalie James says the Enforceable Undertaking is in line
with the Agency's commitment to proactively improve compliance rates in the real
estate industry.

"We are serious about our job of building knowledgeable and fairer workplaces
and don't insist there is only one way to achieve compliance - education and
positive motivators are equally as important as deterrents," she said.

Enforceable Undertakings were introduced by legislation in 2009 and the Fair
Work Ombudsman has been using them to achieve strong outcomes against companies
that breach workplace laws without civil court proceedings.

"Their purpose is to focus the employer on the tasks to be carried out to
remedy the alleged contravention and/or prevent a similar contravention in the
future," Ms James said.

"Many of the initiatives included in Enforceable Undertakings - like
compulsory training sessions - help to build a greater understanding of
workplace responsibilities, motivate the company to do the right thing and help
them avoid the same mistakes again."

A copy of the Enforceable Undertaking is available
on the website at www.fairwork.gov.au

Employers and employees seeking assistance should visit the website or call
the Fair Work Infoline on 13 13 94. An interpreter service is available on 13 14
50.

The Fair Work Ombudsman is committed to providing advice that you can rely on. The information contained on this website is general in nature. If you are unsure about how it applies to your situation you can call our Infoline on 13 13 94 or speak with a union, industry association or workplace relations professional. Visitors are warned that this site may inadvertently contain names or pictures of Aboriginal and Torres Strait Islander people who have recently died.